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MSPB and EEO: Burdens of Proof

MSPB and EEO: Burdens of Proof

In the course of your Merit Systems Protection Board (MSPB) or Equal Employment Opportunity (EEO) hearing, you should be told, by the Judge, of your “burdens of proof”. This phrase is a legal term of art. If you can understand your “burden of proof”, you will really have a good advantage. You can structure your case on arguing that you met your burden of proof, or that the Agency failed to meet its burden of proof.

The Burden of Proof is made up of two separate burdens: the Burden of Production and the Burden of Persuasion. The Burden of Production is the duty to produce factual evidence – whether documentary or testimonial – to the finder of fact (in this case, the Adminstrative Judge). The Burden of Persuasion is the duty to convince the finder of fact to view the facts that were produced in a certain way.

Here are the legal standards for several legal burdens that you will run into in the MSPB and the EEOC – be forewarned, however, there are more than those listed here. You can read more about Burdens of Proof at 5 C.F.R. 1201.56

Clear and Convincing Evidence: Here is the definition the MSPB uses: that degree of evidence that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. Essentially, this means that it is substantially more likely than not that the disputed fact is true. The Agency typically has this burden of proof in a whistleblower reprisal case. Once an Appellant has shown, by a preponderance of the evidence, that the Appellant’s whistle-blowing was a contributing factor in the personnel action at issue, the Agency can only prevail by showing clear and convincing evidence that it would have taken the adverse action at issue regardless of the Appellant’s whistle-blowing. You can imagine how difficult this is for an Agency – since you have already convinced the Judge that it is more likely than not that your whistleblowing contributed to the personnel action, it is going to take an awful lot of evidence to convince a Judge to break that connection.

Preponderance of the Evidence: That degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient o find that a contested fact is more likely to be true than untrue. This is usually the Agency’s burden in any adverse action case before the MSPB. It is the Appellant’s burden in any discrimination claim before the EEOC or MSPB (in a mixed case), and the Appellant’s burden in any affirmative defense (whistle-blower reprisal, etc).

Substantial Evidence: That amount of evidence that a reasonable mind would accept as adequate to support a particular conclusion – even though other reasonable minds could reach the opposite conclusion. This is the Agency’s burden in a performance removal/demotion case. It is a relatively light burden – the Agency doesn’t have to show that their conclusion is right, and you won’t win if you show that the Agency’s conclusion is wrong. The Agency need only show that their conclusion was reasonable. Notice the difference between preponderance and substantial – substantial evidence has nothing to do with whether or not the Agency’s conclusions were true or untrue – only whether they were reasonable. Preponderance, on the other hand, has nothing to do with the reasonableness of the Agency’s conclusion – only whether it is more likely than not true or untrue. Your defense in a substantial evidence case should be designed in such a way as to persuade the Judge that the Agency’s conclusion is unreasonable.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee EEO complaints to discuss the facts and law of your particular case. If you have questions about the burdens of proof in your MSPB appeal or EEO Complaint, contact an EEO and MSPB attorney at the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.